The March meeting of the Workers’ Compensation Advisory Council (WCAC) featured new draft forms for the Second Injury Fund and workers’ compensation claims records, as well as discussion of the latest developments in the Barber case and how the Office of Workers’ Compensation Administration (OWCA) is responding to the pending case.
Notice of Intent addressing reforms to the Medical Treatment Guidelines indefinitely paused
The Notices of Intent (NOI) published in the February Louisiana Register and debated at the last WCAC meeting will die without further action as a result of the decision in Barber v. Louisiana Workforce Commission.
OWCA Director Sheral Kellar and newly appointed Second Injury Board Director Meridith Trahant explained that because the suspensive appeal was granted earlier this month, the MTGs and medical appeals processes will remain in place for now, but the confusion surrounding the issue has left the NOIs in limbo.
“The OWC has resumed processing 1009 appeals,” Trahant said. “Any 1009 appeal that was received during the period of the injunction was not processed and no time delay ran on those appeals. Going forward, the OWC will continue applying the process for 1009s until we receive a final judgment from either the Supreme Court or the First Circuit.”
Director Kellar added that the public meeting on the NOIs that had been scheduled for March 31st will not be held. Trahant said told the Council and attendees that that decision was based on the comments received at the last meeting as well at the issues surrounding the Barber case.
New Second Injury Board and records request forms contemplated
Meridith Trahant and OWCA Records Section Director Andre de la Fuente spent a significant portion of the meeting presenting new forms that are intended to streamline the process for records requests and second injury fund reimbursements. The drafts (download below) will be in the next version of the Register pending changes to address Council members’ concerns.
In particular, representatives of injured workers both on the Council and in the public wanted to see more explicit instructions and warnings for both documents so that both the employer and the employee are aware that the forms are not to be used until a job offer has been made. Several Council members said that the forms are frequently pre-filled or are used to eliminate candidates for consideration during the hiring process. The new records request form creates a new $25 fee to pull records and requires the signed consent of the employee in order to process the request for information about any previous workers’ comp claims or judgments. The employee has the option on the new form to only allow public records to be released or to allow all records.
Anticipated legislation for the upcoming 2017 Regular Session
The WCAC is tasked annually with reviewing any relevant comp-related legislation and voting on it to get to Committee during the Regular Session. So far, only one bill has been pre-filed – Representative Carter’s HB 35 – which would create a notice requirement when reducing workers’ comp benefits for firefighters under retirement.
Benefit reductions so that, when combined, retirement and comp benefits do not exceed the person’s average monthly compensation are already on the books. HB 35 adds the following language:
On or before May thirty-first of each calendar year, the system shall submit to the workers’ compensation payor the name, social security number, and amount of reduction to the member’s benefit payable by the retirement system for the forthcoming fiscal year. The reported reduction shall be presumed correct unless the workers’ compensation payor objects to the reduction amount by written notice to the system on or before June thirtieth of the same calendar year.
Director Kellar said that if Representative Carpenter can come to the next WCAC meeting on April 27th, then there could be a vote on the measure then.
She also said that the Office had become aware of a formulary bill that will likely be filed prior to the next meeting. “One other bill that we know is going to be filed is a pharmacy formulary bill. We’ve been advised by the legislative aide for LASIE [Louisiana Association of Self-Insured Employers] that they’re filing the pharmacy formulary for ODG Appendix A and he has agreed to come talk to us at the next meeting about that,” Kellar explained.
Arrant v. Wayne Acree means OWCA must go through Legislature for prescriptive periods
Director Kellar also addressed the recent Louisiana Supreme Court decision in Arrant v. Wayne Acree. She explained: “The Supreme Court said that the Director did not have the authority by rule to promulgate the prescriptive statute for the appeals from the Medical Director to the court, and that the appeals from the Medical Director to the court were already provided for in section 1209 of the workers’ compensation act, which provides that medical treatment can be requested within one year of the accident and within three years of the last payment of a medical benefit.”
The Council members and Director Kellar had already discussed the decision prior to the meeting Thursday and concluded that “this will direct what we need to do when we make changes to the rules or to the statute,” according to Kellar. In order to comply with Arrant, the OWC will have to amend 1203.1 to re-establish the 15 day period for appeals of a Medical Director determination.
The meeting concluded with the dates for the next OWCA educational conference, which will be held at the Renaissance Baton Rouge on February 1st and 2nd, 2018.
The next WCAC meeting will be held on April 27th in the LaSalle building (LaBelle room) at 9:30 AM.